Monday, November 26, 2012

Got (website) ADA? Commercial Websites and the Accessibility Requirements of the Americans with Disabilities Act.

By Dino Tsibouris and Ken Sperl

Section 508 of the amended Workforce Rehabilitation Act
requires federal agencies to make their websites accessible to disabled
persons.In 2008, the Justice Department
was given the power to create rules for entities subject to the Americans with
Disabilities Act (“ADA”).One of the
goals of the Justice Department under its rulemaking power was to require
commercial entities to abide by the same rules as federal agencies regarding
Section 508.

Before the Justice
Department was given the rulemaking powers regarding the ADA, in 2006 in the Northern District of California, the case of the National Federation
of the Blind, et al. v. Target Corporation, came before the court and the judge
only allowed those portions of the plaintiff’s claims to continue in which the
website supplemented the physical stores of Target and dismissed those claims
that related to information and services unconnected to Target stores (National
Federation of the Blind, et al. v Target Corporation No. C 06-01802 MHP [N.D.
CA., Sept. 5, 2006]).The judge required
a “nexus” between the website and the physical location.

On June 19, 2012 in
Massachusetts, in the case of National Association of the Deaf v. Netflix,
Inc., Netflix argued that the ADA
applies only to physical places and therefore could not apply to website-only
businesses like Netflix’s “Watch Instantly” streaming service.In denying Netflix’s motion to dismiss the
judge ruled that it would be “irrational to conclude” that: “places of public
accommodation are limited to actual physical structures…In a society in which
business is increasingly conducted online, excluding businesses that sell
services through the Internet from the ADA would run afoul of the purposes of
the ADA and would severely frustrate Congress’s intent that individuals with
disabilities fully enjoy the goods, services, privileges and advantages,
available indiscriminately to other members of the general public.” Moreover,
the judge stated that the fact that the ADA “does not include web-based
services as a specific example of a public accommodation is irrelevant” since
such web-based services did not exist when the ADA was passed in 1990 and
because “the legislative history of the ADA makes clear that Congress intended
the ADA to adapt to changes in technology.” (National Association of the Deaf
v. Netflix, Inc., 3:11-cv-30168-MAP [D. Mass. June 19, 2012])However, in a similar case in California, the
judge dismissed such claims against Netflix, holding that Internet movies
viewed online are not within the ADA’s definition of a “public accommodation.”

Commercial businesses using a website to enable customers to purchase
their goods and services are being placed in a difficult position.Currently, there are no regulations in place
that obligate a business to make its website accessible to the disabled.But, as evidenced by the Netflix lawsuit,
courts are willing to treat the situation as though the obligation is in
place.Does a business step up, spend
the money and make its website accessible before it is obligated to do so?Making the changes could be expensive and the
standards may change by the time legislation is passed that specifically
obligates commercial businesses.Or,
does the business stay as it is and accept the potential risk of class action
lawsuits?

Unfortunately we may not have a definitive ruling on the issues of "public accommodation" status with respect to websites in the immediate
term.Netflix settled the case in Massachusetts
in early October and agreed to include closed captioning for all streamed movies
by 2014 and paying $755,000 in fees to the plaintiff lawyers.If anything, businesses should at least
factor accessibility into their development efforts because this may serve as
an incentive for plaintiffs lawyers in the near term.

This web site provides general information about our firm for your convenience. This website and its content do not establish an attorney/client relationship between us. Information on the site is not legal advice.
Do not send confidential information to any of our lawyers without first obtaining our permission.